The Law Office of Ellen B. Holtzman, Rockland County, Nanuet, New York, 845-627-0127  
Rockland County Courthouse, New City, New York. Photo by Sal Cordaro Photography.

 

Matrimonial and Family Law Words and Phrases

Many of the legal terms used in matrimonial and family law are unfamiliar and not necessarily self-explanatory. You can always ask Ellen or Christina for a plain English translation. And meanwhile, here is a start on a Glossary containing some of the words and phrases that you might be seeing or hearing as you go through the legal process. We'll be adding more terms on a regular basis, so if you don't see what you are looking for yet, please come back soon.

Abandonment: A reason for divorce. Ellen notes that in New York, abandonment is rarely used anymore. "Now that no-fault divorce is included in the statute, grounds for divorce are not necessary. Proving grounds was an expensive and time-consuming first step that has not been required since the New York statute was changed in 2010," she said.

Access Time: Some New York Courts use this term instead of "visitation." If a judge gives joint physical custody, the child lives with each parent 50 percent of the time. If the judge awards sole physical custody, the child lives with this adult more than 50 percent of the time. This person is the "custodial party." The non-custodial party will have parental access time, also known as visitation or parenting time.

Action: Any legal proceeding in a court of law. In New York, a divorce action usually includes child custody, child support, maintenance (alimony), and equitable distribution of marital assets and liabilities.

Addendum: A document attached to the original document used to change the original document. Ellen explains, "Let's say the children were two and four when the divorce occurred, and one parent has had primary custody. Then the children reach their teen years, and one or both wants to live mainly with the other parent. If the parents agree, I will write an addendum to the original agreement to modify the custody and child support provisions."

Add-on Expenses: Money that's paid in addition to basic child support. The law that covers add-ons, known as the Child Support Standards Act, provides for two mandatory add-on expenses: childcare and unreimbursed healthcare expenses. The statute also makes provisions for discretionary add-ons, such as music or dance lessons, sports, and religious instruction.

Adjournment: The postponement of the hearing of a case or other court proceedings, such as pre-trial conferences, settlement conferences, or status conferences, until a future date.

Adjudication: The formal giving of an order or decision based on the evidence presented at trial. Ellen notes that judges in the state of New York must apply the law to the facts when making a decision.

Adoption: Adoption involves the creation of a parent-child relationship between the child and individuals who are not the biological parents of the child. Ellen handles several adoptions each year.

Adultery: A reason for divorce. Ellen says, "Like abandonment, adultery is still in the statute but rarely used anymore. I don't use it because we don't need any other grounds for divorce since no fault divorce was passed in New York."

Affidavit: A written statement of the facts of a case. "For example, let's say I am writing an application for child support. I will include my client's affidavit to the court with all of the facts that support his or her request. The affidavit must be sworn before a notary," Ellen explains.

Affirmation: In matrimonial and family law, an affirmation is a statement by an attorney referencing the law that is part of an application to the court. Often the affirmation is submitted along with the client's affidavit.

Affidavit of Service: A document, signed by a process server, who has served papers in a lawsuit, such as a summons and complaint for divorce. The affidavit contains an oath that the papers were properly served. It notes the date, the time, the place, the way it was served, as well as a description of the person who was given the documents.

Age of Majority: The age at which a young person is considered to be an adult in any given state. In New York, a child reaches the age of majority at 18. Ellen notes that in New York, the law says that the age of majority is 18, so as per the law, parental custody terminates at age 18. However, she notes that child support in the state of New York continues until age 21.

Agreement: A formal written document or stipulation agreed upon by two people concerning their respective rights and duties to each other and, if there are children, to the children.

Alimony: The payments made by a person to his/her/their spouse during separation, during the divorce process, or following divorce. In New York State, it is now called spousal maintenance or spousal support.

Alternative Dispute Resolution (ADR): Methods of resolving legal disputes without going to trial, such as collaborative law, mediation, and arbitration.

Ancillary Relief: In an action for divorce, additional help asked for beyond a judgment of divorce, such as child custody, child support spousal maintenance payments, division of property, responsibility for debts.

Answer: The defendant's response to a plaintiff's complaint. The first step in a divorce action is for the plaintiff -- the person who is filing for divorce -- to serve a summons and a verified complaint to the defendant. The answer, a formal response to the complaint, must be sworn or affirmed before a notary.

Annulment: A declaration by a court that a marriage was never legally valid.

Appeal: The process of seeking a higher court's review of a lower court's order for the purpose of correcting or changing the lower court's order or judgment. The Law Office of Ellen B. Holtzman has a very strong record of success in appealing decisions from lower courts.

Appellate Attorney: The Law Office of Ellen B. Holtzman is experienced in matrimonial and family law appeals. Ellen notes that several matrimonial and family law attorneys refer their appeals to her because they don't handle appeals themselves.

Appellate Court: Appellate courts are responsible for hearing and reviewing appeals from legal cases that have already been heard in a trial court. Ellen notes that there are very strict timelines for appeals. She says it is of vital importance that you seek out an appellate attorney immediately after you receive the order from the court.

Arrears: The amount of money that is past due. In matrimonial or family law actions, it is usually for child or spousal support.

Article 10 Proceedings: Family Court Act (FCA) Article 10 is "designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being." The many sections of Article 10 provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his or her needs are properly met.

Attorney for the Child: In contested child custody matters, the court usually appoints an Attorney for the Child (formerly known as the Law Guardian). The purpose of the Attorney for the Child is to represent the child's wishes, unless the child is too young or for some or reason lacks the capacity to make "a knowing, voluntary, and considered judgment." In such cases, the Attorney for the Child uses what is known as substitute judgment.

Bench Trial: A bench trial is a trial conducted by the judge. There is no jury. After hearing the facts, the judge makes the decision. Ellen notes that in the State of New York, all divorce trials and all family court trials are bench trials.

Best Interest of the Children: The legal standard used by the courts to determine the issues of child custody and parental access (also called parenting time and visitation).

Beyond a Reasonable Doubt: Beyond a reasonable doubt is the legal burden of proof required to affirm a conviction in a criminal case. It means that the judge or the jury must be virtually certain of the defendant's guilt.

Burden of Proof: In civil cases, the plaintiff (a person who is suing for child custody or child support, for example) has the burden of proving the truth of his or her claims by a preponderance of the evidence. This requires a certainty greater than 50 percent.

Caption: The caption is the title of a pleading, motion, or other court filing showing the names of the Plaintiff/Petitioner and the Defendant/Respondent, the name of the court, and, depending upon the court, the Index Number, Family Unit Number, and File Number.

Case Law: Case law is law that is based on judicial decisions rather than law based on statutes, constitutions, or regulations. It refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. Ellen Holtzman has prevailed in precedent-setting matrimonial and family law trials that judges subsequently cited and continue to cite in New York cases.

Cause of Action: A fact or a group of facts that give rise to one or more legal reasons for suing, such as an application for child support. If proven in court, a cause of action entitles one person to obtain a decision from the court against the other.

Change of Venue: The transfer of a lawsuit from one county to another. This can occur in a custody case where witnesses and other evidence exist in a county other than the one in which the case was commenced. Says Ellen, "Let's say the dad starts the divorce in Richmond County and the mother and children are now living in Westchester County. As her attorney, I would make application to the court for a change of venue to Westchester because that is where the witnesses (such as doctors, teachers, coaches, Girl Scout leaders, treating therapists, etc.) and other current information will be."

Child Support: Child support is the financial obligation of the non-custodial parent to the custodial parent for the child's support and expenses.

Child Support Standards Act: This is the New York law that determines a parent's financial obligation for child support. The amount is based on the income level of each parent and the number of minor children, so it varies from case to case.

Circuit Courts: The United States courts of appeals (also known as circuit courts) are the first level of appeals in the United States Federal Court system. Ellen tried and prevailed in a precedent-setting Hague Convention international child custody case in the Southern District Court of New York. The case was then appealed to the United States Court of Appeals for the Second Circuit -- and was affirmed.

Clerk: A court official who handles filings, motions, pleadings, etc.

Cohabit: To live in a romantic relationship with another person. If you are a spouse receiving maintenance (alimony) and you cohabit with another person, your maintenance may be terminated.

Collaborative Divorce: In matrimonial cases, collaborative divorce is a process in which the couple hire specially trained lawyers and other professionals who work to help them resolve their conflict out of court. Ellen and Meryl are trained collaborative divorce attorneys.

Commingle: In a matrimonial case, commingling is the act of mixing funds or property belonging to one spouse with those of the other spouse. Ellen says, "The danger of comingling is that your own separate money or property, not subject to equitable distribution at the time of divorce, can become marital property, which is subject to equitable distribution."

Common Law Marriage: A common law marriage exists when a couple who are free to marry agree to live together as spouses instead, without the formal marriage ceremony. New York State itself does not have common law marriage but will recognize a common law marriage that was sanctioned in a state that is known as a common law state.

Complaint: The initial pleading to a court in a civil matter, usually written by the plaintiff's attorney. In a divorce action, it contains the plaintiff's allegations of his or her reasons for divorce and it must be verified (notarized).

Complainant: In a matrimonial action, the complainant is the spouse who files the initial divorce action. He or she is also called the plaintiff.

Concurrent Jurisdiction: Jurisdiction that exists when two different courts have the power to hear a case. For example, in matrimonial actions in New York, child custody cases may be heard in Supreme Court as part of a divorce action or in Family Court.

Constructive Abandonment: In New York State, constructive abandonment means a spouse has refused to have sexual relations for a period of more than one year. Constructive abandonment is grounds for divorce in New York but is rarely used since the passage of no-fault divorce.

Contempt: Most often, civil contempt of court involves failure to satisfy a court order. Usually, sanctions for civil contempt end when the party in contempt complies with the court order -- or the case resolves. However, civil contempt, particularly failure to pay child support, sometimes results in punishment, including fines and even jail time.

Contested Divorce: A divorce action that is opposed and may have to go to trial to resolve the issues.

Corroborate: To confirm -- and possibly add substantiating testimony -- to that of another witness or a party, or to prove a statement, argument, etc. with confirming facts or evidence.

Counterclaim: In a matrimonial case, a counterclaim can preserve your rights. The counterclaim is the defendant's equivalent of a complaint. When you are served with papers for a divorce, you must file an answer or you will default. Your answer is your response to the complaint. Your counterclaim is your complaint against the other party.

County Clerk's Office: The index number of your filing for divorce is held in the County Clerk's Office. When your divorce decree is final, you or your attorney may obtain a certified copy of your divorce decree from the Office of the County Clerk.

Cross Examination: Cross examination is a formal questioning of a witness by the opposing party during a trial, hearing, or deposition. Often called "a cross" by judges and lawyers, a strong cross can elicit contradictions, inconsistencies, or expressions of doubt. The goal of cross examination is to undermine the witness's testimony.

Cruel and Inhuman Treatment: In divorce law, cruel and inhuman treatment can refer to many kinds of cruelty -- physical, emotional, mental, sexual, and financial cruelty. Ellen notes that often it really is more than one. In New York, cruel and Inhuman treatment is still one of the grounds for divorce but is rarely used since the passage of no-fault divorce.

Custody, Legal: Whoever has legal custody has the right to make important decisions about a child's care and well-being, such as medical care or religious upbringing. Ellen notes that when parties agree to joint legal custody, her law office always includes a process in the agreement for resolving disputes about major decisions. If a case goes to trial, it is more than likely that the judge will award sole legal custody to one parent. If a judge gives one parent sole legal custody, that parent alone has the right to make the major decisions for the child.

Custody, Physical: Whoever has physical custody (also known as residential custody), has the child or children more than 50 percent of the time and is responsible for their physical care and supervision.

Decree: The court's written order finalizing the terms of the divorce, including child custody, child support, maintenance (alimony), and equitable distribution of marital property.

Default: In New York, a respondent is in default if s/he fails to answer a complaint for divorce within 20 days. If served while visiting or residing in another state, a respondent has 30 days to file a timely answer.

Defendant: In a divorce, the defendant is the person against whom legal papers, such as a complaint for divorce, are filed.

Deny with Prejudice: When a lawsuit is dismissed or denied with prejudice, the court is saying that it has made a final decision on the merits of the case and that the plaintiff will not be permitted to file another lawsuit based on the same facts.

Deny without Prejudice: When a lawsuit or a motion is denied without prejudice, it means that the court has not decided on the merits of the case; the plaintiffs, if they wish, may take the case to court again.

Depose: The act of questioning a person (the deponent) under oath, at a deposition. The deponent can be either a witness or a party to a lawsuit.

Deposition: If your matrimonial matter cannot be settled, it will go to trial. Depositions are a part of the pre-trial discovery or fact-finding process. During a deposition, the lawyer for the other person asks you questions. You answer with your own attorney at your side. A transcript of the proceedings becomes a part of the file.

Direct examination: The examination of a witness by the attorney who called him or her to court. Ellen notes that one benefit of direct examination is that it provides the court with evidence supporting your case.

Discovery: Discovery is the term for the information-exchanging part of a matrimonial proceeding. If your matrimonial case is contested (meaning that you and the other person disagree about certain issues, and are unable to settle), each party will have to respond to requests for information from the other party. Depositions are part of the discovery process.

Dissolution: The dissolution of marriage is another term for divorce.

Divorce: The legal termination of a marriage.

Domestic Violence: Most people think domestic violence is limited to physical abuse but, according to attorney Ellen Holtzman, abuse is rarely physical only. Domestic violence can involve many different things that your intimate partner may have done to control you. Economic abuse (controlling the money); gaslighting or denying any abuse happened; intimidation, threats, and verbal abuse; psychological and emotional abuse; sexual abuse; and damaging your relationship with the children are other aspects of domestic abuse.

Emancipated: In New York State, a parent must support a child until the child turns 21 or becomes emancipated. Children are legally emancipated under these circumstances: a) they reach age 21; b) they get married (even if the marriage is later dissolved); c) they join the military; d) they reach employable age and are financially self-supporting; e) they have a permanent residence away from the home of the custodial parent (not including residence at school or camp, etc.); f) death of the child or the noncustodial parent.

Equitable Distribution: In a divorce trial, equitable distribution is the division of property that the court considers fair in view of all the circumstances. The judge considers many factors, including each spouse's income and property when they married and at the time of divorce, the length of the marriage, each spouse's age and health, the need of the parent with custody to live in the family home, whether the court has awarded spousal maintenance, the likely future financial circumstances of each spouse and other factors in making its decision. Ellen notes that equitable distribution settlements and trials apply to both assets and liabilities.

Filing Fee: When your attorney files your case for divorce, the courts in New York State charge a filing fee of $210 for an Index Number. That number that will then be associated with every aspect of the case.

Grounds: There are seven grounds for divorce in New York. However, since 2010, when No Fault divorce was passed by the Legislature, the most frequently used ground is the irretrievable breakdown in the relationship for at least six months.

Interrogatories: In matrimonial law, interrogatories are written questions that must be answered under oath.

Joint Legal Custody: Under joint legal custody, both parents have an equal legal right when making decisions about the child's upbringing.

Joint Physical Custody: Under joint physical custody, the child lives with each parent for an agreed upon or court-ordered periods of time.

Judgment: After the trial, the judge will determine the terms of your divorce in a judgment of dissolution of marriage. The judgment will cover all the terms, including division of assets, division of debts, child custody, parental access, child support, and maintenance (alimony).

Jurisdiction: The court with the authority to make legal decisions. In New York, the Supreme Court of the State of New York is the only court that handles divorce cases, unless the case is appealed. If appealed, the case goes to the New York Supreme Court, Appellate Division.

Legal Custody: Legal custody is the decision-making process and authority for determining major decisions about the child's life.

Marital Property: Any asset that comes into the marriage during the marriage is marital property unless it qualifies as separate property.

Mediation: In mediation, the divorcing parties meet with a third person (a mediator). The mediator's function is to help the parties decide on the terms of the divorce, including the financial issues, issues of property and support, where the children will live, etc. The mediator does not represent either party, nor does the mediator give legal advice. Ellen notes that a divorcing person engaged in mediation may consult an attorney during the process. Since mediation is a non-binding process, if the parties do not reach agreement, they can proceed to court. Ellen and Christina stress that before signing any agreement, a mediating party should have an attorney whose practice focus is matrimonial and family law review the documents.

Motion: A motion is a formal written request to the judge for an order, such as temporary custody or spousal or child support. Most motions in New York require a written application giving the court legal reasons for granting the motion, as well as a written notice to the opposing party, whose attorney may file opposition to the motion. Motions can also be made orally during a conference or at the time of trial. However, the courts tend to prefer motions to be made in writing.

 

 

THE LAW OFFICE OF ELLEN HOLTZMAN | 18 LAUREL RD. | NEW CITY, NY 10956 | 845-627-0127